Four months after openings, prosecution to rest in Casey's Nickelodeon murder case

PENALVER TRIAL 1011A Seth Penalver is seen during a break in his third trial… (Joe Cavaretta, Sun Sentinel )

November 18, 2012|By Rafael Olmeda, Sun Sentinel

Prosecutors are poised to wrap up their case against Seth Penalver in the latest retrial of the Casey's Nickelodeon triple murder case — nearly four months after jurors listened to opening statements and more than 18 years after the brutal crime.

Only an unanticipated delay would keep prosecutors from wrapping up early this week, but this is one case that has seen its share of unanticipated delays.

There was the time a prosecutor had back trouble. There was the time a defense lawyer's mother passed away during jury selection. A juror had a death in the family. The defendant was too sick to attend trial. Broward Sheriff's Deputy Christopher Schaub — who found the bodies of Casimir "Butch Casey" Sucharski, Sharon Anderson and Marie Rogers in Sucharski's home in June 1994 — was killed when his motorcycle collided with a car on Sept. 26.

Just last week, illnesses among jurors brought the case to a standstill Tuesday, Wednesday and Thursday. Factor in that Monday, Nov. 11, was Veteran's Day and that proceedings are not scheduled in the case for Fridays, and an entire week went by without jurors hearing a word of testimony.

"I'm sick of having to come back in that courtroom for so many years and look in the face of the guy who killed my sister," said Deborah Bowie, Anderson's sister, who lives in Georgia and occasionally comes to the Broward courthouse to sit in on proceedings.

Penalver has been tried twice before. His first trial, with co-defendant Pablo Ibar, ended in a hung jury in 1998 after seven months. The pair were later tried separately — Penalver was convicted the following year after a six month trial. Ibar was convicted in 2000. Both were sentenced to execution. Ibar remains on Death Row.

But Penalver's conviction was overturned by the Florida Supreme Court in 2006, partly on the basis of a videotape that captured the murders but never clearly revealed Penalver as one of the killers. Prosecutors are using that videotape again this time around, carefully tip-toeing to avoid making the same identification mistakes that led to the 2006 reversal.

For the families of the victims, part of the frustration comes from the scheduling of the case. Broward Circuit Judge Thomas Lynch scheduled testimony for Monday through Thursday from 10:30 a.m. through the afternoon. He uses early morning hours to handle routine motions in other cases, and gave attorneys and jurors in the Penalver case Fridays off out of consideration for the lawyers and the jurors.

It's an explanation Anderson's sister understands but struggles to accept.

"This case has never had a judge that would hear it Monday through Friday, nine to five," Bowie said. "Surely we're not the only case on his docket. Surely we're not the only case that has lasted a long time. But I do believe we're the only family who has gone through this three times with the same case in the state of Florida. I don't want anybody preaching to me that it's something I have to accept."

Even without delays, prosecutors anticipated a lengthy retrial.

"Indeed because this case is old, and because of its previous incarnations, it becomes increasingly complicated both legally and logistically," said Broward State Attorney's Office spokesman Ron Ishoy.

Prosecutors called dozens of witnesses, nearly 50. Some had to come in from out of state. Some were less than happy to be there. Some were unavailable — transcripts of their testimony from previous trials and depositions were read to jurors.

While transcripts capture the words spoken by lawyers and witnesses, they fail to capture any emotion, like nervousness or anger, and offer no visual cues that jurors typically use to size up witnesses.

"You lose a lot, relying on transcripts, but it cuts both ways," said defense lawyer Russell Williams, who is not involved in the Penalver case. "You don't want the person reading to add his own inflections. Sometimes it will be prejudicial against the defense, or prejudicial against the prosecutor. The words have to speak for themselves."

When they finish presenting their case this week, prosecutors will have introduced about 200 exhibits, pieces of physical evidence that jurors can review during deliberations.

Then it's the defense's turn. In Penalver's previous trials, defense lawyer Hilliard Moldof called about 20 witnesses and took less than half the time prosecutors did.